Justesen v. Olsen , 86 Utah 158 ( 1935 )

I concur. Upon the facts and the record, I think the doctrine of correlative rights is inapplicable and impracticable, and that the doctrine of appropriation and beneficial use should be applied. While the exact scope and extent of the area of the artesian basin was not found, yet the court found that it was approximately 30 miles long, 4 miles wide, and covered approximately 120 square miles. To ascertain with any degree of certainty the limits, quantity, or character of the underground waters of such a basin, as here and as shown by the record, is quite impossible, and to attempt to make an award of the waters on the theory or doctrine of correlative rights and according to surface area of the lands of the respective owners, here many of them, some owning tracts of large, others of small, acreage of variant duties of water, is impracticable and bound to lead to unjust awards; and, where those of large acreage and with installations of large pumps, pump 1,000 or more gallons of water a minute from the basin, and casting on the first user or users the burden of showing that such subsequent users are not only taking more than their share of the waters measured on the basis of surface area but also waters belonging to such prior user or users, is, from a practical viewpoint, to give such subsequent users an unjust advantage and detrimental to the rights of the first user. As to further views entertained by me on the subject, I refer to my concurring opinion in the case of Wrathall v.Johnson (Utah) 40 P.2d 755, decided January 2, 1935. As I there said, I say here, all subterranean or artesian basin waters may not be regarded as mere percolating or diffused waters and then as a convenient shotgun method of determining rights therein or thereto, apply the doctrine of correlative rights. The subterranean waters here are not mere percolating or diffused waters. They rather consist of a subterranean body or basin of water in character more or less wild, moving forward in a body in lines of least resistance or held in a depression as a body or basin of water similar to a lake or body of water on the surface and as such subject to appropriation. To apply the doctrine of correlative rights to such a vast area as here — 120 square miles — seems to me to be unworkable, and that the only just rule to be applied is the doctrine of appropriation and beneficial use, first in time, first in right. Where, as here, it is shown that, by the pumping of waters from the basin by a subsequent claimant or user, the first user is deprived of waters of the basin theretofore appropriated and beneficially used and acquired by him, and where the rights of the first user may be fully protected, I see no reason why, instead of enjoining the subsequent claimant from pumping water when by doing so the flow of water of the first ceases or is diminished, the subsequent claimant may not be permitted to supply the first and prior user at the orifice of his well or point of diversion, waters from the basin, in quantity and quality as theretofore appropriated and acquired by him, or to the extent that his waters may be diminished by the pumping of the subsequent user.

During the trial, the defendants in effect tendered such an offer or at their expense to drive the plaintiff's well deeper, in the event the court on the issues was of the opinion that the injunction should be granted, but what became of the offer is not disclosed, nor does it appear that any inquiry was had with respect thereto, or as to the feasibility thereof, or as to whether the rights of the plaintiff could thereby be fully protected. However, since no ruling respecting the matter was invoked in the court below and no point concerning it made or discussed by either party on the appeal, nothing binding may now be ruled on it.